Jack Carnegie – December 19, 2012
The Texas Supreme Court has a penchant for taking a series of related cases to examine various aspects of a particular issue. Recently, the Court’s interest has turned to experts. Understanding just what the Court has held is critical at trial and later, on appeal, to know when your expert’s opinion passes muster and when your opponent’s doesn’t. Here is a summary of a few of these recent cases; in all of them, the Court held that the expert’s opinion was “no evidence”:
The experimental data should fit the facts.
In Merck & Co., Inc. v. Garza, 347 S.W.3d 256 (Tex. 2011), the Court held that a study showing patients taking Vioxx had 5 times as many heart attacks as those taking Naproxin was no evidence that the plaintiff’s heart attack was caused by Vioxx. The reason was that those in the study had taken 50 mg. of Vioxx for a median duration of 9 months, while the plaintiff took only half as much for 25 days.
The expert’s testimony should actually address causation.
In BIC Pen Corp. v. Carter, 346 S.W.3d 533 (Tex. 2011), the plaintiff’s expert testified that the “sparkwheel force” required to operate a child resistant lighter did not meet specifications. “Sparkwheel force,” however, was only one of five child resistant factors and the expert did not show that reduction in sparkwheel force alone increased the number of children who could operate the lighter. More importantly, the testimony did not show that this particular child could not have operated the lighter even if it had met specifications.
Equally plausible theories should be ruled out.
In Wal-Mart Stores Inc. v. Merrell, 313 S.W.3d 837 (Tex. 2010), the plaintiff’s expert opined that a fire was caused when a halogen lamp exploded. The defendant’s theory was that improperly disposed of smoking materials caused the fire. The plaintiff’s expert attempted to rule out smoking as a cause because he did not find any smoking materials where the fire started. But then again, he did not find any glass shards from the halogen lamp either. The Court held that the expert’s opinion was “no evidence” to support the verdict.
If the expert’s theory is testable, the expert should test it.
In Whirlpool v. Camacho, 298 S.W.3d 631 (Tex. 2009), the plaintiff’s expert opined that a fire broke out when a clothes dryer exhaust tube became clogged and caused lint particles to re-circulate through the heater element where they ignited. The defense argued that the lint particles were too small to ignite the clothes and that the circulating clothes would have a stop, drop and roll effect that would extinguish any fire. The Court held that because the plaintiff’s theory could have been, but was not, tested it amounted to nothing more than the expert’s subjective conclusory opinion and constituted “no evidence” to support the verdict.
What can you take away from this?
In light of the Supreme Court’s careful scrutinizing of expert opinions, an inadequately supported opinion will be fodder for appeal to those who know what to look for.